Austin Fire Equipment, LLC

National Labor Relations Board - Board Decisions

Oct 24, 2014

361 N.L.R.B. 764 (N.L.R.B. 2014)

764 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
361 NLRB No. 76
Austin Fire Equipment, LLC and Road Sprinkler
Fitters Local 669, U.A. AFL–CIO. Case 15–CA–
019697
October 24, 2014
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND JOHNSON
On September 28, 2012, the Board issued a Decision
and Order in this proceeding, which is reported at 359
NLRB 37, and on February 7, 2013, the Board issued an
Order Denying Motion for Reconsideration, which is
reported at 359 NLRB 576. Thereafter, the Charging
Party filed a petition for review in the United States
Court of Appeals for the District of Columbia Circuit.
At the time of the Decision and Order and the Order
Denying Motion for Reconsideration, the composition of
the Board included two persons whose appointments to
the Board had been challenged as constitutionally infirm.
On June 26, 2014, the United States Supreme Court is-
sued its decision in NLRB v. Noel Canning, 134 S.Ct.
2550 (2014), holding that the challenged appointments to
the Board were not valid. Thereafter, the Board issued
an order setting aside the Decision and Order and the
Order Denying Motion for Reconsideration, and retained
this case on its docket for further action as appropriate.1
On July 8, 2014, the Charging Party filed a motion for
consolidation and reconsideration.2 On July 15, 2014,
the Respondent filed a brief in opposition to the Charg-
ing Party’s motion. On September 22, 2014, the Charg-
ing Party filed an amended motion for consolidation and
reconsideration. On September 30, 2014, the Respond-
ent filed a brief in opposition to the amended motion. On
October 6, 2014, the Charging Party filed a reply to the
Respondent’s opposition.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
In view of the decision of the Supreme Court in NLRB
v. Noel Canning, supra, we have considered de novo the

1 On June 25, 2014, the Board issued a Supplemental Decision and
Order, reported at 360 NLRB 1176, denying the Respondent’s applica-
tion for fees and expenses under the Equal Access to Justice Act
(EAJA). After setting aside the Decision and Order and the Order
Denying Motion for Reconsideration, the Board also set aside the Sup-
plemental Decision and Order on August 11, 2014.
2 In its initial motion, the Charging Party sought to consolidate this
case with USA Fire Protection, vacated decisions at 358 NLRB 1722
(2012), and 359 NLRB 1722 (2013). The Charging Party additionally
requested that the Board permit additional briefing on the legal issues
presented. The amended motion sought to consolidate this case with
both USA Fire Protection and King’s Fire Protection, Inc., vacated
decision at 358 NLRB 1539 (2012). We agree with the Respondent
that the requested actions are not warranted, and we deny the Charging
Party’s motion.
judge’s decision and the record in light of the exceptions
and briefs. We have also considered the now-vacated
Decision and Order and Order Denying Motion for Re-
consideration, and we agree with the rationale set forth
therein.3 Accordingly, we affirm the judge’s rulings,
findings, and conclusions and adopt the judge’s recom-
mended Order to the extent and for the reasons stated in
the Decision and Order reported at 359 NLRB 37 and as
modified below,4 and the Order Denying Motion for Re-
consideration reported at 359 NLRB 576, which are in-
corporated herein by reference.
ORDER
The National Labor Relations Board affirms the Order
included in its Decision and Order reported at 359 NLRB
37za as modified below and orders that the Respondent,
Austin Fire Equipment, LLC, Prairieville, Louisiana, its
officers, agents, successors, and assigns, shall take the
action in the Order as modified.
1. Insert the following as paragraph 2(b) and reletter
the subsequent paragraphs.
“(b) Compensate affected employees for the adverse
tax consequences, if any, of receiving any lump-sum
backpay awards, and file a report with the Social Securi-
ty Administration allocating the backpay awards to the
appropriate calendar quarters for each employee.”
2. Substitute the attached notice for that included in
the above-cited Decision and Order.

3 Inasmuch as the result in this case would be the same under either
the three-part test set forth in Staunton Fuel & Material (Central Illi-
nois), 335 NLRB 717 (2011), or the standard articulated by the court in
Nova Plumbing, Inc. v. NLRB, 330 F.3d 531, 536 (D.C. Cir 2003),
Member Johnson finds no need to express his view here as to whether
the Board should adopt the court’s analysis.
4 We amend the remedy and modify the Order in the Decision and
Order to provide that the Respondent will compensate unit employees
for the adverse tax consequences, if any, of receiving any lump-sum
backpay awards, and file a report with the Social Security Administra-
tion allocating the backpay awards to the appropriate calendar quarters
for each employee. Don Chavas LLC d/b/a, Tortillas Don Chavas, 361
NLRB 101 (2014). We shall also substitute a new notice to conform to
the Order as modified and in accordance with our decision in Durham
School Services, 360 NLRB 694 (2014).
AUSTIN FIRE EQUIPMENT LLC 765
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT fail or refuse to continue in effect all the
terms and conditions of the agreement between the Na-
tional Fire Sprinkler Association, Inc. and the Road
Sprinkler Fitters Local 669, U.A., AFL–CIO until its
expiration on March 31, 2010.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL make employees whole for any loss of earn-
ings and other benefits resulting from our failure to con-
tinue in effect all the terms of the collective-bargaining
agreement between the National Fire Sprinkler Associa-
tion and the Road Sprinkler Fitters Local 669, U.A.,
AFL–CIO until its expiration on March 31, 2010, with
interest.
WE WILL compensate affected employees for the ad-
verse tax consequences, if any, of receiving any lump-
sum backpay awards, and WE WILL file a report with the
Social Security Administration allocating the backpay
awards to the appropriate calendar quarters for each em-
ployee.
WE WILL make employees whole by making all re-
quired contributions to the contractual fringe benefit
funds that were not made from February 4, 2010, until
the expiration of the parties’ agreement and WE WILL
reimburse unit employees for any expenses resulting
from our failure to make the required payments.
AUSTIN FIRE EQUIPMENT, LLC
The Board’s decision can be found at
www.nlrb.gov/case/15–CA–019697 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1099 14th Street, N.W., Washington,
D.C. 20570, or by calling (292) 273-1940.